My Obiter Dicta

Monday, March 12, 2018

Peter Berger, who passed away less than a year ago, was a world famous sociologist of religion. As with many others, his writings and insights had a profound impact on me, in both my professional and non-professional life. His book, The Sacred Canopy, played a critical role in my thinking about the way that value systems and mentalites envelop, sustain and guide religious societies (which is the central focus of The Fabric of Religious Life in Medieval Ashkenaz). In the 1960's, Berger was deeply concerned by what he sensed was the decline (perhaps, the demise) of religion, in the face of the unrelenting onslaught of Secularism. He pushed back against the 'Death of God' Movement, and asserted the importance of belief in the Divine (in an acknowledged, Liberal Lutheran mode). Thirty years later, though, Berger was surprised (and pleased) to discover that despite his fears, Religion and Faith in a Supernatural God were thriving throughout the world (outside, perhaps, of Europe and the circles of the cognoscenti of Manhattan, Los Angeles and their acolytes. See here). In considering this development, Berger observed that there is an historical irony in the manner wherein religion can thrive in the contemporary world. Until relatively recently, religion was supported by the power of the State. In the Christian West, that is no longer the case, and religious affiliation is now a matter of personal conviction and purely voluntary. This changed circumstance, Berger averred, actually bode well for religion. Freed of institutional constraints (and their dark side), Religion now must compete in the open market of ideas. Berger felt that this surprising resurgence of Religion was largely due precisely to the success of Religious Faith to effectively market itself to a spiritually hungry world (assisted, no doubt, by the intellectual and spiritual superficiality and flaccidity of secularism). There is, I am convinced, much in what Berger wrote that can be constructively and effectively (if judiciously and critically) applied to Jewish Life in the resurgent State of Israel.

First, it's important to note, that Berger (though, ironically, born a Jew) was writing in a Christian context. Since Christian religiosity begins (and often, ends) with one's own personal, internal faith commitment, its propagation can be left to intellectual 'market forces.' Such is not the case for Judaism. Judaism represents a unique blending of ethnicity (or, national identity) and religious, covenantal commitment. Jews are, as R. Saadiah Gaon noted, a nation by reason of our Torah, but Jews remain a part of that nation even when they fail to personally observe the overwhelming number of the latter's dictates (Cf. Sefer Ha-Emunot ve-ha-De'ot III s.v. וכיוון שהקדמתי and Resp. Rashi no. 171). Nevertheless, since the Torah regulates the life of the nation, and finds its fulfillment in the nation, a Jew's religious choices are not entirely his own. They impact directly upon the entire body politic of the Jewish people, to which he is obligated by Tradition. [Indeed, this point that lies at the center of the great divide between Orthodox and Traditionally committed Jews, and their Liberal brethren.] Hence, Traditional Judaism cannot function, cannot survive without some degree of institutionalization (Rabbinical Courts, Kashrut etc.). [This does not, however, mean monopolization. On the contrary, I think that regulated competition may be the best way of ensuring the maintenance of Jewish Law, but that is not for the present discussion.] However, despite the very real and very profound differences between Judaism and Christianity, Berger's basic insight is eminently appropriate. Legislation and coercion, force majeure and raised voices not only do not draw people to Torah,, they drive them away.

To begin with, Judaism never believed that belief or sincere affiliation could be commanded (see my discussion here). These can, and must, be cultivated. When Jews lived in traditional societies, this could be done implicitly, non-reflectively (part of what Prof. Haym Soloveitchik described as 'mimetically.') Today, the overwhelming majority of Jews (outside of Haredi enclaves, and even these are increasingly porous) live in the broader secular mainstream, just as Berger described. Factors that previously helped to preserve Jews' connection to Torah, are largely absent in Israeli society. Broad swaths of the Ashkenazi population lack the profound ethno-religio-cultural sentiment and traditional sensitivities that fueled the Zionist enterprise from the beginning; not to mention the fact that they also lack any scintilla of Jewish literacy (as borne out by the present frenzy among the cultural elites against 'religionization' [הדתה], which usually comes down to an agenda for abject Jewish ignorance.) Into the Jewish vacuum that has formed, flowed (without critical examination) the full flow of contemporary secularism, with its atheist-materialist dogmatic. Even Mizrahi Jews, who do retain a profound sense of religious belief and affinity for Tradition, have their dedication attenuated by an unchecked inundation of contemporary secularism.

This
situation requires Judaism (and, for me, this means Orthodox Judaism, or at least a Traditional modality) to compete in the open market of ideas for the hearts and minds of
the Nation that dwells in Zion. There is every reason to believe that Torah can, and will prevail in such a competition. This is not only because of my own personal conviction, and three millennia of Jewish survival. The renaissance of Judaism, the spiritual resurgence of the past twenty years, is proof enough of the thirst of the Jews of the Land of Israel for God and for Torah; of the fact that there is a population to which the Torah can be made accessible. However, There are two sides to this undertaking; and they must be done simultaneously. On the one hand, we need to teach Torah in a way that will demand people's assent, respect and (hopefully) consent. This requires judiciously adopting and adapting contemporary ideas, values and cultural modes to render Jewish ideals accessible. And, there are broad swaths of overlap between the Torah and ideals held dear by the contemporary West (the advancement of women, for one). Of course, this does not mean that the Torah should be coerced to conform to ideas and values alien to it. Judaism has always encountered other cultures in a mode of interaction. The encounter stimulates thinkers and scholars to see where and to what degree ideas it confronts resonate within the corpus of Jewish Tradition. The results enrich Judaism from within, by bringing to light dimensions of itself that were hitherto unseen, but on its own terms. The encounter also provides teachers of Torah with a language than can be appreciated by those outside its orbit. [Cf. Moreh Nevuhim III, 31, Rambam's discussion of the attitudes toward Agaddah in the Introduction to Pereq Heleq and my discussion here.]

At the same time, competition in the market place of ideas means going on the offensive against those elements, especially the unstated assumptions, of secularism that are incompatible with Religious Faith and a Life of Torah and Mitzvot. The fallacies of the former, and the advantages of the latter need to be put forth in the language of secular society. [Chaim Navon has picked up this gauntlet, but there is much more to do.] To return to Berger, success in the market place requires proper packaging, demonstrating why the product is needed, why the alternative is harmful and all without sacrificing the integrity of the product.

The tragedy is that just when there is an upsurge in desire, a deepening in Jewish awareness, there are almost no men or women ready and willing, trained and dedicated who are available to enter into the lists. Training those men and women and developing the tools to fill this double mission are the most promising way of deepening the Jewish character of the State of Israel, ensuring not only its soul, but its body as well.[To Be Continued]

Sunday, February 11, 2018

I have a vague recollection that the first time I heard the word ‘Prozbul’
was in December 1969 at the International USY Convention in Buffalo. The
subject was ‘The Sabbath’ and the thrust of many of the sessions was how to
bring Sabbath observance into sync with Modern Life. Not surprisingly, high on
the agenda was the Conservative legal opinion that one is allowed to drive back
and forth to the synagogue on Shabbat, a copy of which was included in the
source book. I was very much taken with the supreme confidence expressed by our
discussion leader, a rabbinical student at JTS, not only that the Torah could
be efficiently ‘brought up to date,’ but that ‘we’ are fully qualified to do
so. When asked, whence stemmed their confidence, the answer was: Prozbul.

Neither I, nor anyone else in the
room, had a clue as to what a Prozbul was so, so our leader kindly
explained that the Torah annuls loans after seven years. However, this led to
wealthy people not extending loans to the poor for fear of never being repaid,
so Hillel created a legal fiction that annulled the annulment, overrode the Bible
and that the vehicle by which this effected is entitled called ‘Prozbul’
(Cf. M. Shevi’it 10,3). We must, the leader continued, follow the
example of Hillel and use it as a precedent to legislate in order to bring
Judaism into the Twentieth Century. Allowing driving on Shabbat was one,
sterling example of this type of activity.[1]

Over the subsequent decades, it
seems that whenever I have encountered discussion of halakhic change, Prozbul
is invoked.[2]Prima
facie, it makes sense. After all, according to the Mishnah,Hillel
the Elder did find a mechanismto address a social ill by effectively
avoiding the abrogation of debts in the sabbatical year. However, the way the prozbul
is cited goes far beyond this. It seems to me that it is appealed to as
some sort of magic wand, an ‘Halakhah ex machina’that can
justify any and all situations wherein the Torah is perceived to be out of sync
with the human condition.[3]
Invoking Prozbul, then, is a way of expressing the (at best) extremely
problematic assertion: ‘Where there’s a rabbinic will there’s an Halakhic Way.’[4]

I find this latter usage deeply
distressing. Waving any kind of flag in a discussion of ideas is extremely shallow,
and its use often verges on demagogy. Perhaps that explains why prozbul
is a ubiquitous trope in social media. As if the Internet had not done enough
damage in dumbing down contemporary intellectual intercourse, social media engenders superficiality of brain numbing proportions. Nevertheless, in
the over-heated atmosphere of Facebook and Twitter polemics, whenever someone
challenges the need, appropriateness or authority to change Jewish Law…out
comes Prozbul. Quod erat demonstrandum. ‘Nuff Said.

This type of use of prozbul
is not only distressing in its shallowness, its shallowness is itself deeply
offensive. After all, discussions such as these within an Orthodox context, do
not concern quotidian matters. They treat of the interpretation, and
application, of what Orthodox Jews are supposed to believe is ultimately the Word of God.
Discussions in that context demand the polar opposite of Internet arrogance and
anger, or of social media anti-norms. They require, instead, precision of
thought, meticulousness of formulation, and (above all) a deep and abiding
reverence for the subject and of the broad implications of the analysis. And,
while I obviously cannot do anything about the comportment of others (only of
my own), I would like to revisit the prozbul as a literary and
intellectual topos in order to flesh out my larger point.[5]

The origins, even the very meaning,
of prozbul were long debated by scholars.[6]
Today, it is accepted that the word is of Greek origin, and refers to a legal
instrument presented to a court.[7]
As noted above, loans are annulled at the end of the sabbatical year (Shemittat
Kesafim; Deut. 15, 1-2). Inter alia, this was intended to introduce
a degree of debt relief for the agricultural poor. At the turn of the first
millennium, though, this situation had boomeranged. In fulfillment of a
situation which the Torah had envisioned, and against which it had warned,
people had begun to withhold loans on the fear that they would lose their
investment upon the arrival of the sabbatical year. According to the Mishnah (Shevi’it
10, 1), this situation spurred Hillel the Elder into action: [A loan secured
by] a prosbul is not cancelled [in the sabbatical year]. This was one of the
things instituted by Hillel the Elder. For, he saw that people refrained from
lending to one another, and there transgressing that which is written in the
Torah…’[8]
According to the Mishnah, Hillel ruled that debts that were presented to a
court for collection were unaffected by the sabbatical year amnesty.[9]

The question is, of course, whence
derived Hillel’s authority and ostensible audacity at effectively circumventing
the Torah’s mandated debt amnesty? Indeed, both the Yerushalmi and the Bavli
express (mild?) shock at the implication that Hillel permitted something that
the Torah had explicitly forbidden.[10]
The best of intentions, both imply, do not justify a gross abrogation of an
explicit Biblical injunction.[11]
The upshot of both Talmudic discussions (part of which are anticipated in the
halakhic midrashim) is that Hillel’s actions and authority lay well within the
parameters of accepted Rabbinic jurisprudence, and his authority was rooted in his standing as the head of the Sanhedrin. According to one opinion,
Biblical Law allowed for the exemption of debt from the sabbatical year amnesty
via its assignment to a court. Or, since the amnesty itself was only rabbinic
in origin already in Second Temple times, it was fully within the purview of
the rabbis to legislate an exemption (Hem amru ve-hem amru).[12]

Either way--- and while saying this
should be obvious, it is unfortunately not --- while Hillel is reported to
have responded to a societal need, his area of action was fully determined by
and confined to the accepted rules of rabbinic jurisprudence. It
is inconceivable (and the Talmudic expressions of shock express as much)
that Hillel would have coerced the Torah to ‘adjust’ itself to a new reality, beyond
where the Torah itself allowed him to go. Such an action for a person of
faith would have been nothing less than a blasphemous sacrilege.[13]

This post is, as should be obvious,
not a discussion of theories of the historical development of Prosbul, but
of the manner in which Rabbinic Tradition understands itself, and the ignorance thereof. As a system of
Law and Lore that is rooted in an a priori faith commitment, the legal reality
that Prozbul actually represents in Rabbinic Law must be both
acknowledged and respected.[14]
In contemporary terms, that means that deference to accepted principles of
Post-Talmudic jurisprudence: the supremacy of the Babylonian Talmud,
jurisprudential divide between Rishonim and Aharonim, the
authority of consensus (sugya de-alma) and, above all a healthy
dose of reverence for the judicial moment (Yirat Hora’ah), cloaked in
deference to the Giver of the Torah (Yir’at Shamayim), even to the
inconvenience of the individual.[15]
Those who misrepresent prozbul, and Halakhic Jurisprudence by extension,
are guilty of ignorance at best, and willful, disrespectful distortion, at
worst.

This
is not to imply that Halakhah ‘on the ground’ (as it were) is (or was ever)
meant to be static. However, the interaction of Law and Life is both delicate
and nuanced.[16] Orthodox
belief maintains, and historical study confirms, that Halakhah possesses its
own integrity and was never viewed as a plasticine toy in the hands of the
halakhist. On the other hand, the type of contemporary legal paralysis that has
engendered a society based on fear, on adoration of stricture and the
compulsive need to satisfy ever transient opinion ever uttered is equally
egregious and must be countered by those qualified (present and/or future) to
liberate Halakhic decision making from its chains.

There is, however, a difference. The latter, an admittedly egregious situation,
is an internal development that can be rectified from within. Waving the flag
of prozbul, with historicist fervor and revolutionary ardor, will leave
nothing more than scorched earth.

[1] I am not going to
here revisit the Conservative allowance to drive to the synagogue on Shabbat.
As issued, it amounts to little more than rough historicism. Ironically, a very cogent rebuttal thereto was issued
by the Masorti Movement in Israel.

[5] On this use of topos
as a literary trope, see E. Curtius, European Literature and the Latin
Middle Ages, New York 1953, 80. The term was most significantly used in
Jewish Intellectual History by the late Prof. Isadore Twersky.

[6] A recent discussion of the origins and development of Prozbul,
with prior bibliography, is found in E. Ancselovits, “The Prosbul – A
Legal Fiction?”Jewish Law Annual, 19, 1-16. However, while his discussion is
quite thought provoking, it does not address the point at bar here.

[7] I am following the
discussion of the topic by my colleague, R. Prof. David Henshke, ‘Ketzad
Mo’il Prozbul? Le-Toldot Be’uro shel Taqqanat Hillel,’ Shnaton HaMishpat
HaIvri, 22(2001-2003), 71-106. Both, per se and for purposes of the
central focus of this essay, his presentation is the most persuasive and the
most apt.

[8] The Mishnah in Gittin
(4, 3) describes prozbul as an enactment for the correction of a
societal ill (Tiqqun Olam).

[9] There is a
difference of opinion as to the exact mechanism at work here. See Henshke,
(85-92) and the sources cited there. Ancselovits (passim) describes the
subsequent stages of development of the institution.

[12] Henshke notes that
the Mishnah’s characterization of Prozbul as an‘enactment’ (taqqanah)
can be squared with either approach. The word can mean either ‘regularization’
or ‘legislation.’ The former connotation is appropriate with viewing Prosbul
as an expression of a Biblical hermeneutic.

[13] Cf. H. Soloveitchik, ‘Religious Law and Change: The Medieval
Ashkenazic Example,’ Collected Essays, I, Oxford 2013, 239-240. It is my
conviction that even by the atheist-materialist standards of academic thought,
the historian must presume the religious probity of the medieval
individual (unless decisively proven otherwise). Cf. J. Woolf, The Fabric of
Religious Life in Medieval Ashkenaz (1000-1300), Leiden 2015, 12-21; A.
Gurevich, Categories of Medieval Culture, London
and Boston: Routledge & Kegan Paul 1985. Startling
confirmation of this contention is provided by the diaries of King James I of
Aragon. Cf. R. Burns, ‘The Spiritual Life of James the Conqueror King of
Arago-Catalonia,’ The Catholic Review, 62 (1976), 1-35.

[14] A review of the way that prosbul was adjudicatedin
Post-Talmudic Halakhah bears out
this contention. See Henshke, passim and Y. Dinari, Hakhme Ashkenaz
be-shelhe Yeme Ha-Beynayim, Jerusalem 1984, 200-203. Regarding the last
point, see my essay ‘Masorah in the Teachings of Rabbi Joseph B. Soloveitchik zt’l,’
published here.

[15]
This is not to deny that historical change does represent one
variable, one tool, in the halakhist’s tool box. The parameters of the use to
which such can be put to use is an very important topic on its own. It goes far
beyond t he confines of the present discussion.

[16]
I
address this point in a forthcoming review essay in the Hebrew journal, Zion.

Tuesday, February 06, 2018

My good friend and esteemed colleague, Prof. Rami Reiner,
has just published a moving memoir cum thought provoking essay entitled,
Rabbi
Aharon Lichtenstein and Academic Talmud Study. In the essay, Professor
Reiner explores the apparent anomaly that his revered mentor, Rav Aharon
Lichtenstein זצ"ל, who was known for his
intellectual breadth and disciplined devotion to intellectual rigor and truth,
not only personally eschewed academic Jewish Studies, but actively opposed their
inclusion in the cultural orbit of Yeshivat Har Etzion and its institutions.

Readers will not be surprised that
Professor Reiner’s discussion was of special interest to me, as it addressed questions
that have concerned me deeply for quite some time (and which I have addressed here
and here). The fact that it was Prof. Reiner, a person for whom I have the highest regard as a Talmid Hakham and a Scholar,who authored the article attracted me even more. However, as I did not have the privilege of being a student of Rav Lichtenstein (indeed,
he was the only member of the family that I didn’t study with), I don’t
have the temerity to directly address the question of why Rav Lichtenstein so
stridently opposed Academic Jewish Studies. However, I have found that Prof.
Reiner’s analysis (and subsequent discussions
of the essay in Social Media) have enabled me to revisit a number of points
relating to the relationship between Jewish Studies and Torah (or the lack
thereof), and has helped me formulate my thoughts more carefully.

I would like to share some of these.

The major thrust of Prof. Reiner’s article
centers on the academic conviction (shared by the author) that ‘our ability to
properly understand our sacred sources—Mishnah, Bavli, Yerushalmi, Geonic
Literature, Rishonim,
and Aharonim—hinges
on their textual, linguistic, and contextual examination in addition to their
comparative study alongside proximal counterparts from cultures that neighbor
them temporally and geographically and in their social and religious contexts.”
Prima facie,this precise formulation encapsulates the reasons for which
Rav Lichtenstein objected to resort to academic Talmud in the Bet Midrash.
By these lights, academic Talmud is thoroughly historicist, and uncompromisingly
reductionist. In other words, Academic Talmud study purports to discover the
original form and intent of the words of the Rabbis. The implication is that later
interpretations are either incorrect or (at best) distorted. This assumption, in turn, severely
weakens ongoing creativity in Torah Study as it calls
into question the authenticity of the enterprise. As Professor Reiner notes, the Brisker school of Talmudic
analysis is particularly a-historical, so that it is easy to understand Rav
Lichtenstein’s opposition to this alternative approach. Furthermore, and more
fraught with consequence, the anti-nomian implications of academic Talmud for
Halakhah are self-evident.

As with so many discussions of this
type, one can discern here an implicitly binary way of thinking. To begin with,
it is simply not the case that an ‘original intent’ interpretation for a
rabbinic statement, based on historico-literary context or philology, exhausts
the authentic implications of any given statement. [1]

Such thinking, which is common among academic Talmudists and Jewish
Historians, is guilty of ‘the Genetic Fallacy.’[2] In other words, one should not
judge a phenomenon simply based upon its origins or sitz im leben. The
interaction between Jewish culture and the outside world is far more nuanced than
usually represented. In breve, outside ideas and forces certainly do
have an impact upon Judaism and awareness thereof can enhance our understanding of certain passages (especially in the area of realia). That is normal. However, this impact is not
wholesale or uncritical. In the Middle Ages and in Renaissance Italy (about
which I can speak with some degree of knowledge), outside forces frequently
responded to needs that developed within the Jewish World. It was these that
made their way into the Jewish orbit. These were then adopted and adapted to
the axiological structures of Jewish Life. Hence, the cultural context of any given passage only provides a partial understanding thereof; insofar as these accretions come to express naative Jewish values. Indeed, as noted, the process of influence is also neither unrestricted nor uncritical. Other ideas and forces that confronted Judaism from the outside were not granted entrée, for precisely this reason.[3]

Thus, there is no necessary contradiction between much of the
academic endeavor and adherence to and acceptance of an organic, living
tradition.[4] Levels of meaning and method
are perpetually revealed in great classics of thought and literature (including conceptual analysis). Implicit
methodological assumptions that bind generations of students together are as
reasonable a reality as that which assumes protean changeability and
discontinuity. This is true, all the more so, of a corpus which its bearers
revere as the Word of the Living God.

This brings us to responses to the article that were raised by a number
of te author’s colleagues among the alumni of Yeshivat Ha Etzion: The Question
of Reverence.

A number of these commentators noted that Worship (or Service) of God (Avodat
HaShem) lay at the core of Rav Lichtenstein’s essence, as a Man, as a Jew
and as a Scholar). It was from that point of departure, these observers maintained,
that he objected to the inclusion of Academic Talmud (and Halakhah) in the
Yeshiva. He did not believe that this endeavor added to one's of ‘Fear of
Heaven’ (Yirat Shamayim) to the student. On the contrary, it bore the
seeds of spiritual corrosion.

Upon reflection, one can understand his concern. The academy is, by
definition (at least, in its contemporary iteration) fundamentally atheist
and materialist. God, or religious awareness, play no role in the scholarly
calculus. Hence, it seems almost inevitable that exclusive adherence to this
axiology will affect the inner life of the practitioner, even if he starts off
as a person of faith.[5] One must strive mightily if
one is to maintain both. [The personal price that failure engenders, was
addressed in a previous post.]

Furthermore, at least in the area of Post-Talmudic History of Halakhah,
I do not see how one can be a methodological atheist and a responsible
historian. For, even if the scholar is a non-believer, the subjects of his
inquiry were. They believed in God and they believed that they were
interpreting and applying God’s Law in the world. They felt profound deference
to the words of Tradition. They were deferential to, and self-limited by, those
words.[6] Denial of this reality seems
to me to be an historical distortion.

Finally, there is an epistemological struggle for priority between the two worlds. To return to Medieval imagery, the question is which is to be the 'handmaiden' and which 'the Mistress.

[1] As I’ve frequently noted, academics are no less rigidly dogmatic
than divines. Indeed, they often tend to be more so. Pace academic
aspirations, it remains a fact that the scientific endeavor is profoundly
conditional in its findings. If this is true of ‘hard’ science, a fortiori
is it true of the Social Sciences and Humanities. Academic scholars do the best
that they can with the information and tools at their disposal. However, I’ve
always been bemused by academic certainly (as a practitioner), in light of
the radical limits of the enterprise.

[3] See H. Soloveitchik, ‘Three Themes in the “Sefer Hassidim”,”AJS Review, I(1976), Part I.It
will, no doubt, be objected that this model presumes a degree of integrity and
continuity within Judaism that might be deemed ‘Essentialist.’ That, indeed, is
the case. I subscribe to the notion that while there is certainly change and
development within the Jewish Religion and its Civilization, there are clearly
identifiable lines of continuity that transcend the generations. It is this
methodological conviction that underlies my use of ‘History of Ideas’
approaches to Jewish Intellectual History.

I would add that the present abhorrence
for ‘Essentialism’ in academic circles (itself suspiciously extreme) is itself in retreat
(as is 'theory,' generally) and a new found respect for continuities is asserting itself under the label of
‘Neo-Essentialism.’

[5]With significant exceptions, and Professor Reiner is absolutely among these, I have long gotten the sense that Jewish Studies practitioners seem to develop judgmental postures toward
their subjects of study, reminiscent of the way wherein critics often demean great artists. It often appears that love and reverence for the great figures and works of the past are far from bon ton. Consider, by way of contrast, the passionate
involvement of Prof. Giuseppe Mazzotta in the
study of Dante, without impugning the power and credibility of his
scholarship. [NOTE: In a private communication, I was informed by another student of Rav Lichtenstein that this issue was central to his thinking about Academic Talmud as practiced.]